IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE September 29, 2015 Session

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1 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE September 29, 2015 Session IN RE ABBIGAIL C. Appeal from the Juvenile Court for Claiborne County No. 2012JV1119 Robert M. Estep, Judge No. E COA-R3-PT FILED-OCTOBER 21, 2015 Father appeals the termination of his parental rights. After a thorough review of the record, we reverse as to the ground of substantial noncompliance with the permanency plan, vacate as to the grounds of abandonment by failure to visit and support by an incarcerated parent, and affirm as to the grounds of abandonment by failure to establish a suitable home and persistent conditions. We also affirm the trial court s finding that termination is in the child s best interest. Accordingly we affirm the termination of Father s parental rights. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part; Reversed in Part; and Vacated in Part J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the Court, in which CHARLES D. SUSANO, JR., C.J., and BRANDON O. GIBSON, J., joined. George Edward S. Pettigrew, Cumberland Gap, Tennessee, for the appellant, Travis C. Herbert H. Slatery, III, Attorney General and Reporter; Rebekah A. Baker, Senior Counsel, for the appellee, Tennessee Department of Children s Services. OPINION Background

2 This appeal concerns the termination of Father s parental rights to Abbigail C. ( the child or Abbigail ). 1 Abbigail was born in December 2010 to Ashley S. ( Mother ) and Respondent/Appellant Travis C. ( Father ). 2 The child has three step-siblings who all resided in the home of Mother and Father in Claiborne County, Tennessee. The child and her siblings first came to the attention of Petitioner/Appellee the Tennessee Department of Children s Services ( DCS ) in December 2012, when DCS filed a petition for a non-custodial order controlling conduct and for protective supervision. According to the petition, DCS received several referrals that the children were unsupervised and that Mother was dealing with mental health issues. On December 12, 2012, the trial court granted DCS s petition. The issues that first concerned DCS, however, did not improve. Instead, it appears that DCS received another referral with regard to the children, this time alleging that Father was abusing drugs. On or around December 28, 2012, Father was required to submit to a urine drug screen, which tested positive for THC, 3 benzodiazepines, and oxycodone. Although the children were left in the home, Father was permitted only supervised visitation with the children. On January 2, 2013, however, both parents were arrested on child abuse charges, and all four children were removed to DCS custody. At the time of the removal, Abbigail was two years old. All four children have remained continuously in DCS custody since their removal in January Accordingly, on January 4, 2013, DCS filed a petition for temporary legal custody of the children. The trial court granted a protective custody order on January 20, In the order, the trial court granted temporary legal custody of all the children to DCS. Father subsequently pleaded guilty to child abuse and endangerment charges with regard to the incidents in Tennessee and was sentenced to probation. However, on January 20, 2013, Father was extradited to Nebraska to face prior charges of theft, violation of probation, and domestic violence. Father remained incarcerated while, on January 24, 2013, DCS helped Mother and Father create a permanency plan, which was ratified by the trial court on February 13, On February 20, 2013, the trial court entered an order finding clear and convincing evidence that the child was dependent and neglected and confirming that the child would remain in the temporary custody of DCS. 1 In termination of parental rights cases, it is the policy of this Court to remove the names of minor children and other parties in order to protect their identities. 2 This appeal concerns only the termination of Father s parental rights. Accordingly, we will only refer to Mother to ensure a full recitation of the facts. 3 THC is a marijuana metabolite that is stored in fat cells and can be detected in the body up to thirty days after smoking marijuana. Interstate Mech.Contractors, Inc. v. McIntosh, 229 S.W.3d 674, 677 (Tenn. 2007). 2

3 Although his charges were pending, on February 14, 2013, Father was released from custody in Nebraska. He thereafter resided with his aunt and mother in Nebraska. On February 20, 2013, Father returned to Tennessee to visit the child before returning to Nebraska. Father did not visit the child again after that time. Father did send her letters and pictures; however, the child never received these letters due to concerns expressed by the children s counselor, discussed infra. During this time, Mother and Father were maintaining telephone contact with the children. At some point, however, one of the older children became quite upset after a call with Mother. 4 Accordingly, on April 24, 2013, the trial court entered an order suspending Mother s and Father s right to have telephone communication with the children and ordering that all future visitation occur in a therapeutic setting. Although there is no specific order appointing Father an attorney prior to the filing of the termination petition, the trial court s order indicates that Father s current attorney was present for the judicial review hearing that resulted in the April 2013 limited visitation order. Other documents in the record indicate that Father was represented by his current counsel throughout the proceedings. On December 2, 2013, DCS filed a petition to terminate the rights of Mother and Father in the Claiborne County Juvenile Court. The trial on DCS s petition took place on October 24, 2014 and April 21, Father appeared telephonically, but Mother was not present for either hearing. Dawn Lewis, the DCS caseworker originally assigned to the case, testified about the children s condition when they were removed from Mother s and Father s home. According to Ms. Lewis, the children were dirty, covered in head lice, and visibly undernourished. 5 A DCS investigator, however, testified earlier in the trial that the children were not visibly neglected at the time of the initial investigation. Regardless, Ms. Lewis testified that it took four pizzas to feed the children the night they were removed. Ms. Lewis also testified about her efforts to keep in contact with Mother and Father after the children were removed. Ms. Lewis testified that she had contact initially with Mother and Father, as well as Mother s father and Father s mother. In this contact, Ms. Lewis attempted to explain the Permanency Plan and to establish that Father s mother s home (where Father planned to reside after his release from incarceration) in Nebraska was a suitable placement for the child. 6 Ms. Lewis, however, subsequently lost contact with the parties and did not receive sufficient information to have Father s mother s home approved 4 It appears Mother cursed the child and blamed her for the children being in DCS custody. 5 Ms. Lewis admitted that, of the four children, Abbigail appeared to be the most well-cared-for. 6 Prior to the termination hearing, Father s mother filed an intervening petition for custody of the child. It appears from the record that Father s mother subsequently died, and the petition was dismissed for failure to prosecute by the juvenile court. 3

4 as a placement for the child. Nevertheless, Ms. Lewis submitted the documentation to have Father s mother s home approved, but the home was rejected due to insufficient information. Father testified telephonically. Throughout his testimony, Father maintained that he loved and cared for all of the children, not just Abbigail. Father testified that after he was extradited to Nebraska to face charges, he was released on bond pending a final resolution. During this time, however, he was under a court order not to leave the state. Father testified that he received special permission to make one visit with the child in February After that time, Father testified that he did not have the funds or the permission to visit any additional times. Father admitted that he was currently incarcerated in Nebraska on convictions for theft, domestic violence, and failing to appear. Father s sentence began on October 26, Since that time, Father has been transferred to several different prisons, apparently due to his good behavior. Father testified that he hoped to be paroled in September 2015 but admitted that his sentence would not expire until April Father also admitted that there was a warrant for his arrest in Tennessee for a violation of probation that occurred after he was extradited to Nebraska. This probation violation appears to stem from Father s conviction for child abuse related to the events that occurred in December In addition, Father admitted to a prior conviction for driving while intoxicated. With regard to Father s drug test, Father testified that he had a prescription for the benzodiazepines and oxycodone. No prescriptions, however, were ever offered to either DCS or the trial court. Father also testified that he had used marijuana off and on for his entire adult life but maintained that he had never abused drugs while the children were present. According to Father, although he was sent the Permanency Plan and was aware of several tasks required by it, DCS never offered any assistance to him in completing the tasks. Father testified at one point that he had no contact with Ms. Lewis during her tenure as caseworker on the case, but later admitted that both he and his mother had some contact with Ms. Lewis. Father maintained, however, that Ms. Lewis was generally non-responsive to his calls. Father testified that it was his understanding that the Permanency Plan required that he participate in a parenting class, participate in a mental health assessment, participate in an alcohol and drug assessment, maintain stable employment and income, follow any recommendations that resulted from the assessments, and not incur new criminal charges. Father testified that at the time of trial he had completed, or was in the process of completing, several parenting classes, a mental health assessment, and a drug and alcohol assessment. Father testified that none of the assessments resulted in any recommendations for Father to follow. Father further testified that he signed releases for DCS to receive certificates of completion regarding all of these tasks. There was no dispute that DCS did receive a 4

5 certificate of completion for an online parenting class that was completed prior to the filing of the termination petition. Father also testified without dispute that despite being incarcerated, he has steady income and has been paying child support. At the second hearing, Father submitted proof from the State of Nebraska that his wages had been garnished to pay child support for Abbigail and that Father was current on all his obligations. It appears, however, that the child s Mother retained these payments and they were never sent to Tennessee for Abbigail s benefit. Regardless, nothing in the record suggests that Father was aware that the payments were being retained by Mother. With regard to the period of time Father spent in Nebraska prior to his current incarceration, however, Father testified that he was unable to pay support because he had difficulty getting and keeping a job due to his criminal record and pending charges. According to Father, this fact also prevented him from making the expensive trip from Nebraska to Tennessee to visit the child. Further, although Father was entitled to therapeutic visitation with the child, Father testified that he was under the impression that he was not able to contact the child because of what he described as a No Contact order. Additionally, Father admitted that during this time he was arrested for charges related to a theft, but testified that he was not involved with that crime and that those charges were eventually dropped. Father also testified to the efforts he has made to better himself while in prison. According to Father, he is enrolled in several college courses and will shortly be a certified paralegal. Father testified that every effort he has made while incarcerated is to provide a good life for the child upon his release. Rachel Hunter, another DCS caseworker, also testified. According to Ms. Hunter, she was assigned the case in June She testified that she was unable to find contact information for Father until October During that time, Ms. Hunter testified that no one associated with the case contacted her to obtain a home study for the home in Nebraska or for any other purpose. Ms. Hunter did not contact Father even when she learned his whereabouts, however, because after the first hearing on the termination petition on October 24, 2014, she employed a policy of hush hush in communicating with Father. 7 Ms. Hunter also testified that the only proof she received regarding Father s compliance with the Permanency Plan was a certificate from a short online parenting class, which she testified was insufficient to meet the requirements outlined in the Permanency Plan. 7 From her testimony, it appears that under this policy, Ms. Hunter declined to make any contact with Father despite the fact that she had his contact information. 5

6 Ms. Hunter testified without objection to several disclosures made to her by the older children. For example, one child told Mr. Hunter about an episode where Father set a bed on fire with the children in it, and another child stated that Father hit him with a belt. Ms. Hunter testified that she had personally observed scars on the child s torso and back. Ms. Hunter also testified that all of the children expressed their desire not to return to Mother s and Father s custody. In fact, Ms. Hunter testified that the children appeared frightened at the prospect of leaving their foster home. Melissa Harris, a licensed professional counselor, also testified to her involvement with the children. Ms. Harris testified that she began seeing the children in February 2013, both collectively and individually. Ms. Harris testified, however, that she had only worked with Abbigail since September 2014, due to her young age. Ms. Harris testified that the children had disclosed several instances of abuse to her during their therapy sessions, including the incident where Father set the bed on fire and where Father beat an older child with a belt. Ms. Harris also testified to an incident described by an older child where Father: st[uck] underwear in his mouth one time for what [the older child] presumes was back talking or arguing with him about something. [The older child] said that he was gagging on the underwear, that they were dirty underwear, that he couldn t breathe, he couldn t swallow, he couldn t say anything, and that his mom stood back and was laughing at him while this was going on. If he attempted to take the underwear out of his mouth, that [Father] would smack him. Ms. Harris stated that another child explained how he had to break into Mother s and Father s home because he was locked outside. When he went inside he tried to wake Mother, but she smacked at him. The older child then went into the kitchen and got a piece of bologna and a piece of cheese that they all four shared. The child also reported that Father made him drink alcohol on two different occasions. Ms. Harris testified that the children had several issues when they were first removed from Mother s and Father s home, including aggression, bathroom issues, 8 self-blaming, and lack of self-esteem. With regard to Abbigail specifically, Ms. Harris testified without objection: 8 These issues include an older child using the bathroom on himself and using the bathroom in the shower. 6

7 She was obviously drug exposed in utero. And, so, she has a lot of the behaviors that comes along with that; the aggression, the very impulsive behaviors, using the bathroom on, on herself, not sleeping well, a lot of profanity. And we re working on her understanding what her role is, accepting what she can and cannot do, and listening to rules and structure from other people. Because of the issues that the children were experiencing, Ms. Harris testified that she supported discontinuing phone visitation between the children and Mother and Father. Ms. Harris also testified that she recommended that the children not receive letters from Mother and Father, as the letters would cause the children unnecessary stress. 9 Indeed, Ms. Harris testified that Abbigail had a noticeable stress reaction whenever Father was mentioned. Ms. Harris testified, however, that she advised that therapeutic visitation would be appropriate, but that neither Mother nor Father ever contacted her to facilitate any visitation. According to Ms. Harris, she obtained DCS approval before beginning the counseling with the children and specifically asked DCS that Mother and Father be informed that they should contact her to discuss the children s therapy or to facilitate therapeutic visitation. Ms. Harris testified that, through therapy and the structure provided in their foster home, all of the children have improved markedly. Ms. Harris also testified that the children had bonded with their foster parents and removing the children from foster parents would cause them harm. Norma B., the children s foster mother ( Foster Mother ) mirrored Ms. Harris s testimony regarding the children s allegations of abuse, their resulting emotional and behavioral issues, and the progress they have made since coming to her home. All of the children were placed with Foster Mother immediately after being removed from Mother s and Father s custody and have remained there continuously since that time. Foster Mother testified that she and her husband hope to adopt the children, should they become available for adoption. Specifically with regard to Abbigail, Foster Mother testified that Abbigail initially cussed like a sailor and threw tantrums in order to get a response. Abbigail also had such trouble sleeping that she had to be prescribed medication. However, Foster Mother testified that those habits are getting better with time. According to Foster Mother, none of the children ever expressed any sadness over being taken from Mother and Father. Instead, Foster Mother testified that Abbigail refers to her as Mama. Additionally, Foster Mother testified that she never received any support from Mother or Father for the children s care. 9 Ms. Harris also noted that Abbigail had not yet learned to read at the time of trial. 7

8 After the close of proof, DCS offered the trial court the Tennessee Supreme Court s recently decided Opinion in In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015), which DCS argued removed DCS s obligation to prove reasonable efforts as a precondition to termination. Father objected, asserting that the Kaliyah holding should not be applied retroactively. The trial court indicated that it would consider both parties arguments. The trial court issued a Memorandum Opinion on April 15, Thereafter, on May 28, 2015, the trial court filed a written order containing detailed findings of fact and conclusions of law, which terminated Father s parental rights to Abbigail on the grounds of abandonment by failure to provide a suitable home, abandonment by an incarcerated parent for failure to visit and support and wanton disregard, substantial noncompliance with the permanency plan, and persistence of conditions. The trial court also found it was in Abbigail s best interest to terminate Father s parental rights. Father filed a timely notice of appeal. Issues Presented Father raises several issues on appeal, which are taken from his appellate brief: 1. Whether the juvenile court s judgment is final. 2. Whether the juvenile court erred by failing to enter a final order within thirty days of the final hearing in this matter. 3. Whether the juvenile court made evidentiary errors in admitting Collective Exhibit 1 and relying upon it. 4. Whether the juvenile court erred in weighing alleged statements from absent minor declarants without articulating the reasons it assigned credibility to the statements. 5. Whether the juvenile court erred in considering opinion evidence from a witness for the State who was not tendered as an expert witness. 6. Whether the juvenile court erred in finding that clear and convincing evidence established the ground of abandonment. 7. Whether the juvenile court erred in finding that there was clear and convincing evidence to establish substantial noncompliance with the permanency plan by Father. 8. Whether the juvenile court erred in finding that there was clear and convincing evidence to establish the ground of persistent conditions. 8

9 9. Whether the juvenile court erred in finding that termination was in the child s best interest; 10. Whether the juvenile court violated Father s due process rights by considering new case law not in effect at the time the termination petition was filed; 11. Whether the cumulative effect of the juvenile court s errors warrant vacating the termination. Discussion Subject Matter Jurisdiction Father first argues that this Court lacks subject matter jurisdiction to consider this appeal because the trial court s judgment is not final. Subject matter jurisdiction concerns the authority of the court to hear a matter and cannot be waived. Meighan v. U.S. Sprint Commc ns Co., 924 S.W.2d 632, 639 (Tenn. 1996). The Tennessee Supreme Court has held that [u]nless an appeal from an interlocutory order is provided by the rules or by statute, appellate courts have jurisdiction over final judgments only. Bayberry Assocs. v. Jones, 783 S.W.2d 553, 559 (Tenn. 1990). Rule 3(a) of the Tennessee Rules of Appellate Procedure limits the subject matter jurisdiction of appellate courts to final judgments: In civil actions every final judgment entered by a trial court from which an appeal lies to the Supreme Court or Court of Appeals is appealable as of right. Except as otherwise permitted in rule 9 and in Rule Tennessee Rules of Civil Procedure, if multiple parties or multiple claims for relief are involved in an action, any order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before entry of a final judgment adjudicating all the claims, rights, and liabilities of all parties. Accordingly, if the trial court did not adjudicate all of the parties claims, it did not enter a final judgment. Without a final judgment, this Court does not have subject matter jurisdiction. In this case, there is no dispute that the termination action involved claims against multiple parties. The order terminating Father s parental rights to the child did not adjudicate all of the claims. However, the trial court s order contains a certification pursuant to Rule of the Tennessee Rules of Civil Procedure indicating that the claims against Father are 9

10 final and that there is no just reason to delay appellate review. Rule of the Tennessee Rules of Civil Procedure provides, in pertinent part: When more than one claim for relief is present in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court, whether at law or in equity, may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties. The trial court s order terminating Father s parental rights adjudicates all of the claims related to Father and is properly certified as final pursuant to Rule Despite this fact, Father argues that the Rule certification was inappropriate because no such language was included in the trial court s Memorandum Opinion, which preceded the filing of the purported final order. We respectfully disagree. The trial court s Memorandum Opinion clearly contemplated that the trial court s judgment should become final once an order incorporating the trial court s findings of fact and conclusions of law was filed. Indeed, the trial court specifically anticipated that an appeal would be filed after the entry of an order incorporating the Memorandum Opinion. Because the trial court s final order contains Rule certification and the trial court speaks through its order, Palmer v. Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App. 1977), we must conclude that the order terminating Father s parental rights was properly certified as final pursuant to Rule Consequently, this Court has jurisdiction to consider this appeal. Tennessee Code Annotated Section (k) Father next argues that the trial court s judgment should be reversed due to its failure to comply with Tennessee Code Annotated Section (k). Section (k) provides, in pertinent part: 10

11 The court shall enter an order that makes specific findings of fact and conclusions of law within thirty (30) days of the conclusion of the hearing. If such a case has not been completed within six (6) months from the date the petition was served, the petitioner or respondent shall have grounds to request that the court of appeals grant an order expediting the case at the trial level. Here, the trial concluded on April 21, The trial court issued its Memorandum Opinion on May 15, However, the order terminating Father s parental rights was entered on May 28, 2015, approximately seven days after the expiration of the thirty-day time period outlined in Tennessee Code Annotated Section (k). Although the trial court failed to strictly comply with the thirty-day timeline, Father did receive notice of the trial court s ruling within the statutory timeframe. Indeed, he filed his notice of appeal before the entry of the final order, despite the trial court s statement in the Memorandum Opinion that the time period for filing a notice of appeal would not begin until the filing of the final order. Additionally, this Court has previously held that a trial court s failure to strictly comply with Tennessee Code Annotated Section (k) did not warrant remand to the trial court, much less the reversal that Father requests in this case, where the trial court made appropriate findings of fact and conclusions of law to support its ruling. In re Isobel V.O., No. M COA-R3PT, 2012 WL , at *4 (Tenn. Ct. App. Nov. 8, 2012) ( We repeatedly have held that the time frame contained in the statute reflects the legislature s intent that parental termination cases be handled in an expeditious manner and is not mandatory. ) (citing In re Zada M., No. E COA-R3-PT, 2011 WL , at *5 (Tenn. Ct. App. Apr. 11, 2011)). We have thoroughly reviewed the trial court s order and conclude that other than on one issue, discussed infra, the order contains sufficient findings of fact and conclusions of law. This issue is, therefore, without merit. Evidentiary Rulings Father next argues that the trial court erred in several evidentiary rulings and that the wrongly admitted evidence was improperly relied upon by the trial court. A trial court s evidentiary rulings are reviewed under the abuse of discretion standard. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 87 (Tenn. 2008). An abuse of discretion occurs when the trial court applies an incorrect legal standard or reaches a conclusion that is illogical or unreasonable and causes an injustice to the party complaining. Id. (quoting State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007) (quoting State v. Ruiz, 204 S.W.3d 772, 778 (Tenn. 2006))). We will consider each of Father s evidentiary arguments in turn. A. Admission of Collective Exhibit #1 11

12 Father first argues that the trial court erred in admitting Collective Exhibit #1, over his objection, during DCS s opening statement. Collective Exhibit #1 consists of the certified court records pertaining to the children. Certain documents are self-authenticating; that is, they do not require [e]xtrinsic evidence of authenticity as a condition precedent to admissibility. Tenn. R. Evid According to Rule 902(4) of the Tennessee Rules of Evidence, such self-authenticating documents include: A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office (including data compilations in any form), certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or the Tennessee Legislature or rule prescribed by the Tennessee Supreme Court. The documents contained in Collective Exhibit #1 consist entirely of certified court records, and the documents were certified as correct by the Claiborne County Juvenile Court Clerk. Thus, despite Father s protestations in his appellate brief, the documents did not require that a witness be present and testify to their authenticity. We agree with Father that the better practice is that evidence should not be admitted during the opening statement phase of trial. See generally State v. Sexton, 368 S.W.3d 371, (Tenn. 2012), as corrected (Oct. 10, 2012) (discussing the purpose of opening statements). However, because the documents consisted only of properly certified official court records that were clearly admissible under the Tennessee Rules of Evidence, these documents were admissible without the need for an authenticating witness. Under these circumstances, we must conclude that the trial court s decision to admit the documents during opening statements was not error. Furthermore, because the documents were admissible, we find no error in the trial court s reliance on Collective Exhibit #1 in its ruling. B. Statements by the Children Father next argues that the trial court erred in admitting and considering hearsay statements from the children regarding their treatment at the hands of Father and Mother. As previously discussed, both Ms. Harris and Foster Mother testified as to several statements made by the children concerning physical abuse and neglect that they endured while in the custody of Father and Mother. Father argues: (1) that DCS failed to elicit sufficient evidence to admit the hearsay statements pursuant to Rule 803(25) of the Tennessee Rules of 12

13 Evidence; 10 (2) that the trial court failed to determine[] the child[ren s] ability to understand the truth or a lie before admitting the statements; and (3) that the trial court failed to require that the children be sworn in pursuant to Rule 603 of the Tennessee Rules of Evidence. 11 We have thoroughly reviewed the trial transcript and have found no objections of any kind lodged by Father regarding the statements attributed to the children. Rule 36(a) of the Tennessee Rules of Appellate Procedure provides, in relevant part: Nothing in this rule shall be construed as requiring relief be granted to a party responsible for an error or who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error. The Advisory Committee Comment to this Rule clarifies that the above rule is a statement of the accepted principle that a party is not entitled to relief if the party invited error, waived an error, or failed to take whatever steps were reasonably available to cure an error. As explained by this Court: The contemporary objection rule is an elementary principle of trial practice. Parties who desire to object to the admission of evidence must make their objection in a timely manner and must state the specific basis for their objection. Overstreet v. Shoney s, Inc., 4 S.W.3d 694, 702 (Tenn. Ct. App. 1999). Parties cannot obtain relief on appeal from an alleged error they could have prevented. Tenn. R. App. P. 36(a). 10 Rule 803(25) provides: Children s Statements. Provided that the circumstances indicate trustworthiness, statements about abuse or neglect made by a child alleged to be the victim of physical, sexual, or psychological abuse or neglect, offered in a civil action concerning issues of dependency and neglect pursuant to Tenn. Code Ann (b)(12), issues concerning severe child abuse pursuant to Tenn. Code Ann (b)(21), or issues concerning termination of parental rights pursuant to Tenn. Code Ann and Tenn. Code Ann , and statements about abuse or neglect made by a child alleged to be the victim of physical, sexual, or psychological abuse offered in a civil trial relating to custody, shared parenting, or visitation. Declarants of age thirteen or older at the time of the hearing must testify unless unavailable as defined by Rule 804(a); otherwise this exception is inapplicable to their extrajudicial statements. 11 Rule 603 provides: Before testifying, every witness shall be required to declare that the witness will testify truthfully by oath or affirmation, administered in a form calculated to awaken the witness's conscience and impress the witness's mind with the duty to do so. 13

14 Therefore, failing to make an appropriate and timely objection to the admission of evidence in the trial court prevents a litigant from challenging the admission of the evidence on appeal. Welch v. Bd. of Prof l Responsibility, 193 S.W.3d 457, 464 (Tenn. 2006); State ex rel. Smith v. Livingston Limestone Co., 547 S.W.2d 942, 944 (Tenn. 1977); Ottinger v. Stooksbury, 206 S.W.3d 73, 78 (Tenn. Ct. App. 2006). Levine v. March, 266 S.W.3d 426, 440 (Tenn. Ct. App. 2007). Because Father did not object to the admission of these statements during the trial, he cannot raise their admission and the trial court s subsequent reliance on them as an error on appeal. C. Ms. Harris s Expert Opinion Father next argues that the trial court erred in admitting and considering the expert opinion of Ms. Harris, a licensed psychologist, because she was not tendered as an expert. We first note that this Court held that the Tennessee Rules of Evidence contain no requirement that a witness must be tendered as an expert before testifying. See Tire Shredders, Inc. v. ERM-N. Cent., Inc., 15 S.W.3d 849, 863 (Tenn. Ct. App. 1999) ( [Appellant] does not, however, direct us to any authority in Tennessee requiring the formal tender of a witness prior to the giving of expert testimony. Nor has our independent research revealed any such requirement. ). Thus, so long as Ms. Harris s qualifications were sufficient to allow her to testify as an expert, there was no error in DCS s failure to tender her as an expert. Even more importantly, we again note that Father failed to object to any of Ms. Harris s testimony, including her opinion testimony. As previously discussed, the failure to lodge a contemporaneous objection to the admission of evidence will result in a waiver of any argument concerning the evidence s erroneous admission on appeal. See id. at 864 ( In order to challenge on appeal a trial court s admission of [expert testimony], there must appear in the record a timely and specific objection to the evidence or motion to strike the evidence. ). Thus, this argument is also waived. Termination of Father s Parental Rights Father next argues that the trial court erred in terminating his parental rights, both because there was insufficient evidence to prove grounds for termination and to prove that termination was in the child s best interest. Under both the United States and Tennessee Constitutions, a parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 14

15 170, 174 (Tenn. 1996). Thus, the state may interfere with parental rights only if there is a compelling state interest. Nash-Putnam, 921 S.W.2d at (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination statutes identify those situations in which the state s interest in the welfare of a child justifies interference with a parent s constitutional rights by setting forth grounds on which termination proceedings can be brought. In re Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., Nos. M COA- R3-PT, M COA-R3-PT, 2005 WL , at *7 (Tenn. Ct. App. Apr. 29, 2005)). A person seeking to terminate parental rights must prove both the existence of one of the statutory grounds for termination and that termination is in the child s best interest. Tenn. Code Ann (c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Because of the fundamental nature of the parent s rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 769. Consequently, both the grounds for termination and the best interest inquiry must be established by clear and convincing evidence. Tenn. Code Ann (c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence establishes that the truth of the facts asserted is highly probable... and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence produces in a fact-finder s mind a firm belief or conviction regarding the truth of the facts sought to be established. Id. at 653. In light of the heightened standard of proof in termination of parental rights cases, a reviewing court must modify the customary standard of review as set forth in Tennessee Rule of Appellate Procedure 13(d). As to the trial court s findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). We must then determine whether the facts, as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). When the resolution of an issue in a case depends upon the truthfulness of witnesses, the trial judge, who has had the opportunity to observe the witnesses and their manner and demeanor while testifying, is in a far better position than this Court to decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith, and credit to be given to any witness s testimony lies in the first instance with the trier of fact, and the credibility accorded will be given great weight by the appellate court. Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997). 15

16 Furthermore, in termination of parental rights cases, Tennessee Code Annotated Section (k) provides that the court shall enter an order which makes specific findings of fact and conclusions of law. Section (k) is a reflection of the General Assembly s recognition of the necessity of individualized decisions in these cases. State v. McBee, No. M COA-R3-PT, 2004 WL , at *5 (Tenn. Ct. App. 2004). Because of the gravity of their consequences, proceedings to terminate a parent s rights to his or her children require such individualized decision making. Id. (citing In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999)). Furthermore, as previously stated by this Court, quoting the Tennessee Supreme Court in In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003): The trial court is required to find only one statutory ground for termination of parental rights.... However, given the importance of establishing the permanent placement of a child who is the subject of a termination of parental rights proceeding, the trial court should include in its final order findings of fact and conclusions of law with regard to each ground presented. If the trial court addresses each ground that is raised in a termination proceeding, the child s permanent placement will not be unnecessarily delayed due to a remand for findings on alternate grounds. McBee, 2004 WL at *13 *14 (citations omitted) (emphasis added). When a trial court fails to comply with Section (k), we cannot simply review the record de novo and determine for ourselves where the preponderance of the evidence lies[.] Id. at *6. A. Grounds for Termination In this case, DCS alleged several grounds for termination against Father including abandonment, persistent conditions, and substantial noncompliance with the permanency plan. See Tenn. Code Ann (g) (outlining the grounds for termination of parental rights). We begin with abandonment. I. Abandonment Tennessee Code Annotated Section (g) provides that one ground for termination of parental rights shall be [a]bandonment by the parent or guardian, as defined in The trial court specifically found that clear and convincing evidence supported a finding that Father abandoned his child by failure to establish a suitable home, as well as failure to visit and support and wanton disregard by an incarcerated parent. We will consider each definition in turn. 16

17 1. Abandonment by Failure to Establish a Suitable Home Father first argues that the trial court erred in finding that he had abandoned his child by willfully failing to establish a suitable home. Relevant to this argument, Tennessee Code Annotated Section (1)(A)(ii) indicates that abandonment may be found when: The child has been removed from the home of the parent or parents or the guardian or guardians as the result of a petition filed in the juvenile court in which the child was found to be a dependent and neglected child, as defined in , and the child was placed in the custody of the department or a licensed child-placing agency, that the juvenile court found, or the court where the termination of parental rights petition is filed finds, that the department or a licensed child-placing agency made reasonable efforts to prevent removal of the child or that the circumstances of the child s situation prevented reasonable efforts from being made prior to the child s removal; and for a period of four (4) months following the removal, the department or agency has made reasonable efforts to assist the parent or parents or the guardian or guardians to establish a suitable home for the child, but that the parent or parents or the guardian or guardians have made no reasonable efforts to provide a suitable home and have demonstrated a lack of concern for the child to such a degree that it appears unlikely that they will be able to provide a suitable home for the child at an early date. The efforts of the department or agency to assist a parent or guardian in establishing a suitable home for the child may be found to be reasonable if such efforts exceed the efforts of the parent or guardian toward the same goal, when the parent or guardian is aware that the child is in the custody of the department;.... The trial court made the following findings with regard to this issue: The record is mostly void of any evidence to provide a suitable home. Certainly [Father] cannot provide a suitable home while he is incarcerated in the State of Nebraska. * * * 17

18 [Father] testified of a suitable home in the State of Nebraska, owned by his aunt.... The Defense wants to blame the State of Tennessee, Department of Children s Services for lack of reasonable efforts to do a home study of the home in the State of Nebraska owned by [Father s aunt]. However, DCS caseworker Dawn Lewis testified that she had attempted to get information from [Father s mother] to complete the [Interstate Compact on the Placement of Children] When the needed information was not provided she submitted the ICPC with what she had and it was rejected due to not being completed with all of the necessary information. Efforts to reunify require cooperation from both sides. The State of Tennessee, Department of Children s Services is required to undertake reasonable efforts to reunify. However, the parents are also required to make reasonable efforts to reunify. In this particular case, the children came into custody of the State of Tennessee as dependent and neglected children based on the actions of the two (2) parents, [Mother] and [Father]. * * * [Father] engaged in criminal activity such that he placed himself into a position that he became incarcerated in the State of Nebraska. Therefore, the Court finds that any efforts to try and reunify were made impossible by the actions of the parents. In his appellate brief, Father s only argument on this ground provides: Those [findings by the trial court] are not sufficient, factually or legally, to sustain the termination of [Father s] parental rights under the abandonment ground so found by the trial court. Father cites no caselaw to support his argument that the trial court s findings are insufficient. After a thorough review of the record, we conclude that the trial court s findings are sufficient and that the evidence does not preponderate against them on this issue. First, the record on appeal clearly shows by order of February 20, 2013, the child was found to be dependent and neglected and placed in the custody of DCS. Additionally, there is no dispute that Father is currently incarcerated and his sentence will only expire in Accordingly, 12 Father testified that he may be eligible for parole in However, this Court has held that parole 18

19 the trial court correctly found that Father cannot establish a suitable home where he resides. Father asserted at trial, however, that either his mother s or his aunt s home is suitable and that DCS failed to exert reasonable efforts to assist him in establishing those homes as suitable. 13 We respectfully disagree. Ms. Lewis testified of the multitude of efforts that she expended in order to communicate with Father regarding establishing a suitable home. According to Ms. Lewis, she attempted to obtain the appropriate information to have Father s mother s home approved as a suitable home for the child, but she never received the appropriate information. Ms. Lewis even testified without dispute that she attempted to have the home approved with the information that had been provided, but that the home was rejected. In contrast, Father s testimony was sometimes contradictory as to how much communication he had with Ms. Lewis. For example, Father specifically testified that other than his meeting with Ms. Lewis in January 2013, DCS never even spoke with [him]. He later admitted, however, that both he and his mother were in contact with Ms. Lewis after his extradition to Nebraska. Under these circumstances, we cannot conclude that the trial court erred in relying on Ms. Lewis s testimony, rather than Father s. See Bouldin v. Warren Cnty. Sheriff s Dep t, No. M WC-R3-CV, 2004 WL , at *3 (Tenn. Workers Comp. Panel Feb. 26, 2004) (holding that even an implicit credibility finding is entitled to considerable deference on appeal ) (citing Tobitt v. Bridgestone/Firestone, Inc., 59 S.W.3d 57, 62 (Tenn. 2001)). Based upon Ms. Lewis s testimony, it appears that she made several attempts to gain the appropriate information to establish a suitable home in Nebraska, but that her efforts were thwarted by her inability to keep in contact with Father and his mother. In addition, the lack of communication with Father can be attributed to Father s incarceration, which was the product of his own poor choices. Under these circumstances, we affirm the trial court s finding that despite DCS s reasonable efforts, the ground of abandonment by failure to establish a suitable home was met by clear and convincing evidence. 2. Abandonment by Incarcerated Parent Father next argues that the trial court erred in finding clear and convincing evidence to support the ground of abandonment by an incarcerated parent. Tennessee Code Annotated Section (a)(iv) provides that abandonment may be shown by proving that: eligibility does not equate with release, but only with the possibility of release. In re M.B., No. M COA-R3-PT, 2008 WL , at *5 (Tenn. Ct. App. May 29, 2008). Accordingly, we will consider the date that Father is certain to be released. 13 The record is somewhat unclear as to whether Father s mother and aunt resided in the same home or resided in separate, but adjoining homes. 19

20 A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent s or guardian s incarceration, or the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child;.... This Court has indicated that the above definition contains multiple ways of abandonment for termination of parental rights. In re Kierra B., No. E COA-R3PT, 2014 WL , at *8 (Tenn. Ct. App. Jan. 14, 2014). In this case, the trial court found that abandonment by an incarcerated parent was proven by showing willful failure to visit and support, as well as wanton disregard. One required element of the ground of abandonment by an incarcerated parent requires that the parent or guardian is incarcerated at the time of the institution of an action... or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action[.] Tenn. Code Ann (a)(iv). A brief review of Father s incarceration record is helpful in determining this issue. According to the record, Father and Mother were both arrested in January 2013 for child abuse charges. Father was then extradited to Nebraska but was released pending a final determination of his charges on February 20, Father was not incarcerated between February 20, 2013 and October 26, 2013, other than a few days. 14 On October 26, 2013, however, Father began his current incarceration. Thus, at the time of the filing of the termination petition on December 2, 2013, Father was incarcerated and had been for a little over a month. Accordingly, the first element necessary to a finding of abandonment under Tennessee Code Annotated Section (a)(iv) has been met. We will, therefore, go on to consider whether the trial court erred in finding that the ground of abandonment by an incarcerated parent was shown by willful failure to visit and support and wanton disregard. a. Willful Failure to Visit and Support 14 The record is somewhat unclear as to why Father was incarcerated during this time. Father testifies at one point that it was due to a paperwork error and at another point that it was due to an erroneous theft charge. 20